I’ve written about this in an earlier post and, since then, so-called “Stingray” technology has gone viral throughout police departments across the nation. The technology allows police officers to actually scan cell phone data in a target region. It does this by tricking cell phones into thinking that it is a cell tower and causing them to connect to it while they pass through the targeted area.

Police will tell you that the device can only obtain “meta data” such as numbers dialed, location, etc., but the technology fully supports the ability to actively monitor voice conversations and text message content. Government representatives insist that they are limiting their usage to avoid violating the law, but given the government’s track record on eavesdropping, who really believes that? Apparently not the Superior Court judges in Pierce County, Washington where, after reading news reports about the device, issued strict requirements to local police who intend to use the device. These judges understand the huge potential for abuse that is probably happening as we speak and they’ve taken action to get the police community to commit to what they are stating publicly regarding their usage of this technology.

I’ve said it before and I’ll keep saying it. We live in a police state in a post-privacy world. Our “reasonable expectation of privacy” has been replaced by the “reasonable expectation of criminality” held by police who see crime anywhere they look. With this kind of technology, they don’t have to look far anymore. They can hear anything you say, read anything you text, whether you are a suspect or not. If you happen to be near one of these devices installed in a police car some time, say hi and offer to go buy them some donuts.

Bad guys with guns pose a real danger to police, nobody denies that and we all want to keep police safe from harm. But that has never been, and never should be, a sufficient justification for violating the rule of law we live by embodied in our Constitution and protecting us from unwarranted illegal searches by police. That is not who we are as a nation and the further away we move from that principle, the closer we come to living in a police state. So how do you evaluate a technology that has the demonstrated ability to spot guns hidden on suspects, but which can be used by police to indiscriminately scan anyone to see what objects they’re carrying? Complicated question. But if we are true to the rule of law that governs us all, we cannot justify the use of a technology that has demonstrable benefits if it violates Constitutional guarantees. That is simply not how we operate.

NYPD is using a new technology known as “Tera Scanning” which provides officers with a device that scans a little used frequency in the light spectrum, and point the device at a person to see what light is reflected back and what light is blocked by solid objects. That’s a fancy way of saying that police now have what we can think of as portable X-ray machines that allow them to see hard physical objects we are carrying. It doesn’t use x-rays, that’s just my term to help make understandable what they are able to do and see. As you see from the picture above, the shape of an object can be detected without an actual physical search. This addresses objections to the NYPD’s infamous “Stop & Frisk” policy because there is neither a stop nor a frisk required. But let’s be real here, what police are doing can only be described as a “search” by any measure of that word. They are using technology to see things that the unaided eye could not, and they are seeing things that are in an area that everyone would agree carries a reasonable expectation of privacy. It’s a search, there’s no question about it. And the Constitution hasn’t changed just because technology has improved, a search still requires a warrant or the exigent circumstances that justify a warrantless search. That remains the law and hasn’t changed just because we’re better at searching.

Think about how police could use this. They could point it at anyone walking the streets in Ferguson, Missouri to see if they’re carrying a gun. But by doing this, they will also see other things we are carrying, everything from a camera or digital recording device, to a colostomy bag or a hypodermic syringe. However you may feel about the tradeoff between security and liberty, the rule of law we live by and founded in our Constitution, prohibits warrantless searches and the fact that a search is less invasive does NOT make it any more legal or morally justified. I think that cops should be able to use this kind of technology when they have the legal authority to search, and in no other situation. If they’re not allowed to search because they have no warrant or exigent circumstance justifying the lack of a warrant, then this new technology isn’t going to change that fact.

Most of us will remember how police found Boston bombing suspect Dzhokhar Tsarnaev hiding in a boat. Police found Tsarnaev using helicopters equipped with thermal imaging sensors that can “see” heat signatures that reveal the presence of warm things (like a human body hiding under a tarp in a boat). The technology is expensive and has been thus far mostly limited to public rescue planes and helicopters. But thanks to a new grant from Homeland Security, local police all around the country are now able to get their police cars equipped with these new gadgets and see thermal images projected right on to their police car laptops.

The United States Constitution does not authorize the formation of a National Police force, and law enforcement has been a local responsibility ever since the founding of the country. But what the federal government cannot do directly, it manages to find a way to do indirectly, through the justification of “national security”. The Department of Homeland Security has been providing local police with a wide assortment of new technologies and toys ostensibly designed to protect us from terrorists, and that’s of course what gets all the attention, but police are not waiting around for terrorists to show up after getting their squad cars all juiced up. Not surprisingly, they are finding other uses for the technology and that means they are using it on you and me.

Thermal imaging is really being used for one primary purpose: to find people where the human eye could not ordinarily see them. This means that in places where ordinary people would have a reasonable expectation of privacy, police are able to easily invalidate that expectation by using surveillance tools that abolish reasonable expectations. They can “see’ where people would not reasonably expect to be seen. What’s the problem with that, you say, if criminals are hiding? The problem is that police are NOT going to limit their surveillance to manhunts for terrorists on the run, they are going to drive around peeking into every dark corner they encounter, looking to see what they can see. Laying in a field of grass with your loved one watching a moonrise? Standing on your balcony at night watching the stars? You may have nothing to hide, but it’s still unsettling to know that your image might be under surveillance on some police car computer screen. The threat of “Big Brother” may seem cliché and trotted out way too often, but it’s a fact that we are rapidly losing every last shred of privacy we once thought we had by virtue of what is effectively becoming a National Police force funded by the federal government. It’s not a conspiracy, it’s a demonstrable and factual reality and you and I are paying for it.

It’s a comment on modern reality that we are all getting used to the sight of video surveillance cameras in virtually every public space. It’s a well-worn cliché to comment on “Big Brother” but there’s nothing hyperbolic about it, we are there and we have essentially moved into a post-privacy world where every movement we make is likely being monitored and watched by someone, somewhere. We can debate the value of this trade off between security and privacy, but we cannot deny that we’ve made the bargain.

And now you can add audio surveillance to the mix. The newest technology being added, ostensibly for “crime-fighting” purposes, is called “Gunshot Detection Systems” and it involves the placement of a lot of microphones all around us so that in the event someone, somewhere might shoot off a gun, listeners will be able to triangulate the source of the gunshot and locate the shooter, who is presumably someone doing something wrong. But as is clear from users of the technology, the system not only picks up gunshots, it hears the sounds we make and the words we speak. Big Brother got some powerful ears.

If you’re a gun rights advocate, you will probably not like hearing that every gunshot you fire will now be known to the government. If you are anti gun, you may find this system appealing, but keep in mind that a government that spends its time and money watching everything we do and listening to everything we say on the off chance that we might be doing something illegal, is a government that is NOT governing at all. This is almost the definition of a police state, and it is one of the final steps in the complete transformation of our culture from one that is endowed with “inalienable” rights that include privacy from unreasonable governmental intrusion, into one in which the “unreasonableness” becomes linked to any desire for privacy. Somewhere, things got reversed, and our very liberty, our freedom to be private, has been sacrificed.

As Benjamin Franklin famously said, “Anyone who gives up their liberty for a little security, deserves neither”. There are good reasons our Founding Fathers felt this way and attempted to limit the government’s ability to monitor us. It’s not like they weren’t aware of crime, crime has always existed. But even then they were able to articulate and write into the Constitution a need for “probable cause” as a pre-requisite for governmental searches; they would not have been ok with “Gunshot Detection Systems” or ubiquitous video surveillance. The “reasonable expectation of privacy” has now apparently been replaced by a “reasonable expectation of criminality”

Those words were spoken by US Supreme Court Justice Elena Kagan (former dean of Harvard Law School) during oral arguments on a case currently before the Court that will answer the question whether police officers need a search warrant to search a cellphone carried by an arrested person. The case is Riley v. California and it’s an attempt by government to broaden the scope of searches without the need for a warrant. There is an exception to the warrant requirement that allows officers to search a person “incident to arrest”, and it makes sense in order to protect officer safety (looking for guns or weapons) or to preserve evidence that could be easily disposed of otherwise (e.g., drugs). But a cellphone? It doesn’t seem to present any threat to officers and what danger is there that evidence exists on the phone, which cannot be obtained after the phone is seized and a search warrant obtained? This seems like a no-brainer to me.

But the government continues to peel away every last vestige of privacy that we have in order to maintain control and this is just the latest example. Even Justice Scalia, the ranking Conservative on the bench, stated “If police should arrest someone for driving without a seatbelt, it seems absurd that they should be able to search that person’s iPhone”.

Cell phones play a uniquely powerful role in modern criminal prosecutions. Prosecutors have learned that they are basically radios constantly transmitting information to local cell towers. In a murder case I tried, the government issued search warrants for every cell tower near the shooting and was able to get records of every phone that was in the vicinity. By doing this, they were able not only to place my client’s phone at the scene, they were able to demonstrate to the jury that the phone was constantly in use texting someone else except for a 7 minute period during which the shooting occurred. Powerful evidence? It would have been, except that the defense cell phone expert testified that the government manipulated the evidence to show the two time periods coinciding when in fact they did not overlap. The State Patrol officer who altered the charts presented to the jury at the prosecutor’s request admitted this during cross examination, and held her head down in shame.

The point is, cell phones play a unique role in our lives not only because of the data on them – which, as Justic Kagan points out, is comprehensively biographical – but also because of their ability to present a complete picture of our travel, our conversations, our stop and go’s. The Framers of our Constitution could not have envisions cell phones and their ubiquity, and the best they could do for future generations was prohibit “unreasonable searches” of our “persons, papers and effects”.

It’s axiomatic that what constituted an “unreasonable search” in 1789 is difficult to translate to 2013. And the US Supreme Court’s “reasonable expectation of privacy” rubric doesn’t help much because “reasonable expectations” naturally evolve with the technology landscape. But the implications of this anachronistic approach are staggering and little is being done to address the problem. What is at stake is one of the most cherished protections enshrined in the Bill of Rights, a document that literally was required in order to adopt our Constitution. From the beginning, Americans have expected to be free from “unreasonable searches” by the government as a fundamental part of their package of individual rights. And we are losing that protection as technology advances faster than our legal system can react.

The legal system simply isn’t capable of keeping up with the pace of technological erosion of privacy. The only way these issues can be resolved jurisprudentially is via the following process:

1) A new technology is invented and police quickly adopt it for use in a criminal investigation;

2) A suspect is convicted at trial and preserves their objection to use of the technology;

3) The long series of appellate courts refuse to grant the defendant relief;

4) The matter makes it way to the United States Supreme Court by petition for a writ of Certiorari (“Cert”).

5) Four members of the Court agree that it’s an issue worth hearing and they grant Cert.

6) The Court hears arguments and issues a ruling.

This process can take decades. Meanwhile, of course, police continue to use the technology to the point where the very definition of “reasonable expectation of privacy” changes to reflect that people no longer expect privacy where they once did. The result: an ongoing, uni-directional erosion of privacy with no end in sight.

The following article published by Eleanor Birrell at Harvard suggests some solutions with teeth. Don’t hold your breath.

Defensology is aimed at general audiences interested in issues affecting the use of technology in criminal investigations and prosecutions. The perspective of the author is that of a criminal defense lawyer, without apology.

Defensology is maintained by Robert Perez, a criminal defense lawyer based in the Seattle area of Washington State. Robert is proud to defend liberty and freedom and restrict the ever growing reach of an intrusive government. Fight the Power.